Tribunal decisions

The decision

IAC-AH-VP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/08836/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 28th November, 2016
signed and sent to
Promulgation on 7th
February, 2017
On 8th February 2017

Before

Upper Tribunal Judge Chalkley

Between

mr sharyar ali
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Rashid Ahmed, Counsel
For the Respondent: Mr McVitie, a Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Pakistan, born on 3rd February, 1988. He entered the United Kingdom with valid leave until 30th November, 2013. On 28th November, 2013, the appellant submitted application for further leave to remain as a Tier 4 (General) Student Migrant and in support of the application provided an English language certificate awarded by TOEIC. The application was granted with leave valid until 16th July, 2015.

2. On 27th November, 2014, the applicant, together with his British spouse, moved to the Republic of Ireland.

3. On 2nd February, 2015, the appellant received a Notice of Immigration Decision dated 26th January, 2015, in which the appellant was specifically considered to be a person who sought leave to enter the United Kingdom by deception and on the basis of information provided by ETS, the Secretary of State for the Home Department was satisfied that there is substantial evidence to conclude that the certificate was fraudulently obtained. The appellant was granted a right of appeal out of country under Section 82(1) after he had left the United Kingdom.

4. The appellant had exercised his right to file an out of country appeal on 9th February, 2015, against the immigration decision of 26th January, 2015, and this appeal came for hearing before the First-tier Tribunal on 17th December, 2015. His appeal was dismissed. The appellant sought leave to appeal and suggested that the high evidential burden had not been discharged by the Secretary of State. At the hearing before me Mr Ahmed sought to rely on the decisions of the Upper Tribunal in SM and Qadir v Secretary of State for the Home Department (ETS - evidence - burden of proof) [2016] UKUT 229 (IAC) and in MA (ETS - TOEIC testing) [2016] UKUT 405 (IAC). Unfortunately, he did not have copies of either cases for me. I adjourned in order that he could obtain them. On resuming the hearing Mr Ahmed handed those cases to me. He told me that he accepted that these cases were decided after the hearing before the First-tier Tribunal in this appeal. He told me that he had sought to persuade the First-tier Tribunal that the evidential burden had not been satisfied. He now accepted, in the light of these decisions that the evidential burden has been satisfied. I asked him to clarify his submission and tell me whether he now accepted that there was in fact no error of law in the decision of the First-tier Tribunal. He told me that there was no error of law but the appellant now wished to call for a transcript of the record of the speaking test. I pointed out to Counsel that I could not interfere with the decision, unless he could establish that there was an error of law in it. He told me that he accepted that there was none.

5. Mr McVitie agreed that there was no error of law in the determination. Since both representatives were in agreement that the determination of First-tier Tribunal Judge D N Harris contained no material error of law I uphold his decision.

Notice of Decision

The appeal is dismissed

No anonymity direction is made.

Richard Chalkley
A Judge of the Upper Tribunal

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Richard Chalkley
A Judge of the Upper Tribunal